Pearse McCaffrey v Transdev Melbourne

[2015] FWC 3400

[2015] FWC 3400

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.365 - Application to deal with contraventions involving dismissal

Pearse McCaffrey
v
Transdev Melbourne
(C2014/8495)

VICE PRESIDENT WATSON MELBOURNE, 27 MAY 2015

Application to deal with contraventions involving dismissal - Accord and satisfaction - Whether the Commission has the power to issue a certificate under s.368(3)(a).

Introduction and Background

[1] This decision concerns an application to deal with contraventions involving a dismissal made under s.365 of the Fair Work Act 2009 (the Act). An application was made by Pearse McCaffrey on 30 December 2014. Mr McCaffrey contended that he was dismissed by Transdev Melbourne (Transdev) for refusing to submit to a drug and alcohol test at the request of Transdev compliance officers and that this was in contravention of ss. 345 and 351 of the Act. Transdev objected to the application on the basis that Mr McCaffrey had been dismissed on grounds of misconduct following a subsequent incident where he is alleged to have driven a company vehicle in an unsafe and aggressive manner and also having then taken the vehicle out of service to attend to personal business without the authorisation of his employer.

[2] In accordance with s.368 of the Act, a conference was held on 23 January 2015. At the conference, the parties agreed to settle the matter on the basis of terms set out in a document headed “Terms of Settlement”. This document was signed by both parties at the conclusion of the conference. The settlement agreement required Transdev to forward to Mr McCaffrey a document that confirmed that an investigation was commenced in relation to his refusal to undergo the drug and alcohol test, that the allegations investigated were not substantiated and that no action was taken against him in relation to these allegations. The document also contained a release in favour of Transdev.

[3] Transdev subsequently sent a letter dated 27 January 2015 to Mr McCaffrey’s home address which it contends complies with the requirements of the settlement document.

[4] A number of emails were sent by my chambers to Mr McCaffrey asking him to advise of the status of the matter and whether the file with the Commission could be closed. In response to this correspondence, Transdev forwarded a copy of the letter provided to Mr McCaffrey to my chambers and advised that it now believed the matter to be closed. Mr McCaffrey did not respond to this correspondence until an email dated 13 April 2015 which stated that he did not consider the matter closed and that the Transdev letter provided to him was not a factual account of the events surrounding the matter.

[5] In response to this correspondence, my chambers emailed the parties and requested that Mr McCaffrey confirm whether he wished the Commission to issue a certificate to the effect that all reasonable attempts to settle the matter have been, or are likely to be, unsuccessful. Mr McCaffrey responded to this email raising a number of issues that he had with the Transdev letter that had been provided to him and further queries that he had about the process.

[6] The matter was listed for a telephone report back on 23 April 2015 to discuss the issues raised. Transdev contended that the matter was resolved and no further action is available or appropriate. Subsequent to this report back, directions were issued to the parties requiring them to file submissions on the question of whether the Commission had the power to issue a certificate under s.368(3)(a).

Statutory and legal context

[7] The basis of the issuing of a certificate arises under s.368(3)(a) of the Act. This section provides that:

“(3) If the FWC is satisfied that all reasonable attempts to resolve the dispute (other than by arbitration) have been, or are likely to be, unsuccessful, then:

(a) the FWC must issue a certificate to that effect; and

(b) if the FWC considers, taking into account all the materials before it, that arbitration under section 369, or a general protections court application, in relation to the dispute would not have a reasonable prospect of success, the FWC must advise the parties accordingly.”

[8] The issue of whether a settlement resolves a matter before the Commission has been considered by the Federal Court in relation to an unfair dismissal application. In Australian Postal Corporation v Gorman and Another, Besanko J of the Federal Court of Australia said that: 1

“[31] An accord and satisfaction extinguishes the existing cause of action and replaces it with a new cause of action based on the agreement. A valid accord and satisfaction is not a discretionary factor relevant to the subsequent litigation of the original claim; it is an answer to the claim.

...

[33]There is nothing in the Act which suggests that an accord and satisfaction should not be recognised. At a general level the object of Chapter 3 Part 3-2 and the general statements of the manner in which FWA is to perform its functions and the matters to which it is to have regard are consistent with the recognition of an accord and satisfaction. Furthermore, the words of subsection 587(1) are wide enough to include the recognition of an accord and satisfaction. As I have said, a valid and effective accord and satisfaction extinguishes the pre-existing cause of action and continued pursuit of an application based on such cause of action is clearly capable of being considered to be frivolous or vexatious or without reasonable prospects of success.”

[9] Section 587 of the Act relevantly provides that:

“587 Dismissing applications

(1) Without limiting when the FWC may dismiss an application, the FWC may dismiss an application if:

(a) the application is not made in accordance with this Act; or

(b) the application is frivolous or vexatious; or

(c) the application has no reasonable prospects of success.

Note: For another power of the FWC to dismiss an application for a remedy for unfair dismissal made under Division 5 of Part 3-2, see section 399A.

(2) Despite paragraphs (1)(b) and (c), the FWC must not dismiss an application under section 365 or 773 on the ground that the application:

(a) is frivolous or vexatious; or

(b) has no reasonable prospects of success.

(3) The FWC may dismiss an application:

(a) on its own initiative; or

(b) on application.”

[10] As this matter concerns an application under s.365 of the Act it is not possible to dismiss the matter on the grounds in ss. 587(1) (b) or (c). The critical question however is whether reasonable attempts to resolve the dispute have been successful. If this question is answered in the affirmative there is no basis to issue a certificate under s.368(3)(a).

Have attempts to resolve the dispute been successful?

[11] Mr McCaffrey submits that Transdev has acted dishonestly throughout the proceedings and did not act in good faith towards him before the Commission. He submits that a certificate should therefore be issued under Act. Mr McCaffrey has raised a number of wording issues regarding the settlement letter but he has not advanced any substantive grounds which dispute the contention that he reached a binding agreement with Transdev.

[12] Transdev denies the allegations advanced by Mr McCaffrey in relation to its conduct at the Commission. The company submits that the “Terms of Settlement” document constitutes a binding agreement by the parties thereby extinguishing the application. It further contends that the settlement letter provided to Mr McCaffrey fully satisfies its obligations set out under the settlement agreement as it mirrors the language used in the agreement that was reached between the parties and signed by them.

[13] The wording of the relevant part of the settlement agreement signed by the parties was as follows:

“3.1 The Respondent will within 7 days of the Applicant and the Respondent signing these terms of settlement, provide the Applicant with a document in relation to a refusal by the Applicant to perform a drug and alcohol test and an alleged aggressive interaction with a female colleague. The document provided will outline that the matters led to the commencement of an investigation, that the allegations were not substantiated, that the investigation was not continued and that no action against the Applicant was taken in relation to these allegations.”

[14] The subsequent letter forwarded to Mr McCaffrey on 27 January 2015 reads:

“This letter is to confirm the following:

• On 15 October 2014 it was alleged that you initially refused to submit to a Drug and Alcohol test and that you were alleged to have engaged in an aggressive interaction with a Transdev employee, [name withheld].



• These allegations led to the commencement of an internal investigation into events surrounding these allegations.



• Upon investigation it became clear that these allegations were not substantiated.



• As a result, the investigation was swiftly discontinued and no further action was taken by Transdev Melbourne against you in respect of these matters as no misconduct had occurred.

We hope this clarifies the events surrounding this matter and that all parties understand the matter is therefore now fully closed.”

[15] I have no doubt that the parties reached a settlement of the matter in the conference conducted by me. Further, I considered that Transdev complied with its obligation under the Terms of Settlement including clause 3.1.

[16] In my view, the dispute under the Act was resolved by the making of the settlement agreement and the subsequent correspondence from Transdev. It follows that there is no basis to issue a certificate under s.368 of the Act and that it would be inappropriate to do so. The file in this matter will be closed.

VICE PRESIDENT

Final written submissions:

Transdev Melbourne on 29 April 2015.

Mr McCaffrey on 7 May 2015.

Transdev Melbourne, in reply, on 12 May 2015.

 1 (2011) 196 FCR 126.

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